Judge intends to send Las Brisas air quality permit back for agency review, according to letter

CORPUS CHRISTI - A letter issued Monday by a district judge could push proponents of the $3 billion Las Brisas Energy Center back to the drawing board.

The letter, issued by 345th District Court Judge Stephen Yelenosky of Travis County, details his intent to send back a state-issued air quality permit to the Texas Commission on Environmental Quality for review.

The letter could mean the energy plant's permit will be reversed or remanded to the state.

In his letter, Yelenosky agrees with appeals regarding the agency's failure to require adequate technology to handle the plant's fuel source, the agency's failure to comply with National Ambient Air Quality Standards and a lack of accountability for how petroleum coke would be stored and transported to the plant.

"Here, the worst-case scenarios factually and legally were not modeled," Yelenosky wrote.The opinion letter concludes by stating that the order may require an additional hearing or briefing to determine whether a permit reversal, or reversal and remand is appropriate.

Attorneys for the Environmental Defense Fund and Sierra Club, which are fighting the plant, could not be reached Monday for comment. Kathleen Smith, a former managing partner in the plant's parent company, said she no longer was involved in the project and referred questions to a board member, who could not be reached.

Those for and against the plant met last week in a Travis County courtroom to argue their legal points.

Opponents maintain that state environmental regulators and Las Brisas' experts failed to show the plant does not violate clean air laws.

Attorneys for the plant argued that it meets emissions requirements and will not pose a public danger.

The company filed for the air permit in May 2008, leading to the long fight that included three weeks of evidentiary hearings on pollution control plans and computer models showing how its pollution could affect the Corpus Christi area's status under federal pollution limits.

Through the permitting process, the levels of some pollutants, including mercury and particulate matter, were reduced from the company's first proposal. The TCEQ approved the company's permit in January 2011 over the objections of the Environmental Protection Agency and against the recommendation of two administrative law judges.

The plant has other regulatory hurdles to clear — a wastewater permit pending with the TCEQ and a greenhouse gas permit pending with the EPA.